Shifting the Burden of Proof and the Sixth Amendment

When does a “rebuttable presumption” shift the burden of proof unconstitutionally from the state to the defendant?

If you're anywhere around the mid-Atlantic region you may have heard recently about the Fairfax County, VA, judge who is tossing out drunk driving cases because he believes Virginia's drunk driving law is unconstitutional.

Judge Ian M. O'Flaherty made it known in July that he felt Virginia's DWI law unfairly deprived defendants of the presumption of innocence if breath tests showed that they had a blood alcohol content of .08 or higher, levels at which people are presumed to be intoxicated.

The judge's argument is that if you presume intoxication at .08, you shift the burden to the defendant to prove his innocence and relieve the state of its Constitutional burden to prove all elements of the offense beyond a reasonable doubt. If a blood test reveals a .08 alcohol level, the state has proven a .08 alcohol level, but has it proven intoxication or impairment? Not necessarily.

So the judge is refusing to convict people accused of DWI if the state is relying only on this presumption and has no other evidence of impairment. This first came up in August and TalkLeft had a thread on it then, and then another last week.

I'm interested in this issue for several reasons, but the big one is this: I have a Bail Reform Act (BRA) trial tomorrow where the statute involved in the case includes the same sort of “rebuttable” presumption and burden shifting as Virginia's DWI law. Should I try to argue that this DC law is unconstitutional?

The D.C. Law is § 23-1327, “Penalties for failure to appear,” which says in pertinent part:

(a) Whoever, having been released under this title prior to the commencement of his sentence, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, . . . (2) if he was released in connection with a charge of misdemeanor, be fined not more than the maximum provided for such misdemeanor and imprisoned for not less than ninety days and not more than 180 days. . . .

(b) Any failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear is wilful.

Section (b) is where the state shifts the burden to defendant. In effect, the statute says: If you don't show, you're presumed guilty until you prove otherwise. That sounds unconstitutional, doesn't it?

Yet, the Second Circuit said that this law was Constitutional. According to the annotations to the statute, section (b):

did not shift the burden to defendant to disprove the presumed existence of an element of a crime, it merely created a permissible inference of willfulness based on a showing of notice and failure to appear; even though the burden of production of rebuttal evidence rested with the defendant, the burden of persuasion of an element of the crime had not been shifted to the defendant, only that the trier could find the government proved the element beyond a reasonable doubt, absent a countervailing explanation by the defendant. Raymond v. United States, App. D.C., 396 A.2d 975 (Jan. 9, 1979).

I don't get it. It's doublespeak. The burden isn't shifted but the defendant has to prove his innocence? How can that work?

But as those TalkLeft threads point out, U.S. law creates rebuttable presumptions all the time. Are all of these unconstitutional, or are there differences among them? And what are the chances a lower court judge is going to say so? None? Yeah, that's what I thought.

Still, I might argue something about this tomorrow. If you have anything to add (esp. cases regarding the Constitutionality of this burden shifting), please share! For example, according to the WaPo:

Ronald J. Bacigal, a criminal law professor at the University of Richmond, said of O'Flaherty: “I think he's exactly right. There are U.S. Supreme Court cases saying you can't relieve the government of proof beyond a reasonable doubt, which is what a presumption does.”

Does anyone know what those SCOTUS cases are? I haven't had a chance to dig into this so they may be easy to find; no need to do my research for me but if you have them off the top of your head, that would be awesome.

Posted 09:11 AM | Comments (3) | TrackBack | 3L crimlaw

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